DA, defense spar over how Italy could have helped Rega

October 21, 2011

BROOKVILLE â€” The Philadelphia Italian General Consulate testified in a special hearing Thursday at the Jefferson County Courthouse in the post-conviction appeal for Robert G. Rega of Punxsutawney, saying he possibly could have received additional legal assistance as an Italian National during his state appeal from February 2003 through Jan. 15, 2008.

The Federal Public Defenderâ€™s office in Philadelphia is representing Rega in his federal appeal of his post-conviction death sentence after a jury in June 2002 found him guilty of killing Gateway Lodge night watchman Christopher Lauth in December 2000.

David Osborne, a member of Regaâ€™s appeal team from Philadelphia, questioned Luigi Scotto, the Italian Consul General in Philadelphia, who testified that his duties include assistance to Italian citizens within the jurisdiction of the Italian Consulate in Philadelphia, which encompasses Pennsylvania.

In a written statement he read via a conference call, Scotto said pursuant to Article 36 of the Vienna Convention on Consular Relations of 1963 â€” of which the United States is part â€” that it should have been notified when an Italian National is arrested, committed to prison, placed in custody pending trial or is detained in any other manner.

Scotto also said pursuant to Italian laws, once the Consular authorities in Philadelphia had received the communication, they would have provided Rega with fundamental legal assistance.

He said a list of reliable and well known counsel â€” with their experience in both national and international law â€” could have efficiently assisted Rega in guaranteeing his inalienable
rights to due process of law, fair trial and to an effective and complete legal assistance.

That could have led to a different outcome of the trial, which may have been more favorable to Rega, Scotto said.

He said a list of experts and assessors could have been provided by the Consulate who, with their technical knowledge, could have rebutted the testimony and the evidence against Rega.

In particular, for instance, the Consulate could have provided a list of crime scene reconstruction experts to investigate the positions of the shooter and of the victim, suggesting an alternative theory of the shooting that would have tended to be more favorable to Rega, Scotto said.

In consideration of Regaâ€™s personal history, the Consulate General could have also provided a list of expert psychologists, psychiatrists and/or neurologists who could have supported a diminished capacity defense, he said.

Scotto said that the Consulate also could have provided financial aid to pay attorneysâ€™ fees and other legal costs and interpreters if need be, as well as keeping his family informed on his conditions.

David Osborne, a member of Regaâ€™s federal public defenderâ€™s legal team, asked Scotto when he first heard of Regaâ€™s case, to which Scotto replied via an order from Osborneâ€™s office Sept. 27 to testify in Regaâ€™s appeal. He said he prepared a document Oct. 18 and signed it in regard to what the Consulate General could have provided for Rega.

Osborne asked that the affidavit be entered into evidence in Regaâ€™s appeal, to which District Attorney Jeff Burkett objected, because he said it is a â€śhearsayâ€ť document.

Common Pleas Judge John H. Foradora said the affidavit could be entered into the record as an exhibit but not as evidence, to which Osborne agreed.

Scotto said the affidavit was the official position of the Italian government on the Rega case.

During cross-examination, Burkett asked Scotto if the Consulate had unlimited funds, saying, â€śYouâ€™re not going to give every defendant everything they ask for?â€ť

Scotto said the cost doesnâ€™t depend on him, but depends on his superiors.
Burkett said Scotto couldnâ€™t say what dollar amount Rega wouldâ€™ve received, to Scotto replaied he had noted that clearly.

Burkett said that Scottoâ€™s affidavit did not say Rega wouldâ€™ve received any of those things, and Scotto said he must be authorized by his superiors in Rome, and he doesnâ€™t make the final decision.

Burkett then wanted to know if Scottoâ€™s superiors give a defendant everything they ask for. Scotto said that he thought he could say yes, that his superiors would give him everything the defendant asked for.

Burkett then asked, because it was a capital case, if the Consulate could give a defendant everything he or she asked for. Scotto replied if Italian citizens are in need, they would receive what they ask for, depending on the importance of the case.

When Burkett asked what if a defendant didnâ€™t receive everything he or she requests, Osborne objected, saying Burkettâ€™s question was argumentative.

Foradora sustained Osborneâ€™s objection and asked Scotto if thereâ€™s a budget in the Consulateâ€™s office. Scotto replied that he has a budget, and that important cases may also receive supplementary funds, depending on the needs of a defendant.

Burkett asked who authorizes the supplemental funds, to which Scotto replied that his superiors make that authorization.

Later in the hearing, Burkett asked if there has ever been a case in Pennsylvania in which the Consulate provided funds, attorneys and expert witnesses for a capital case. Scotto said there has been such as case in the United States, but not in Pennsylvania.

When Burkett asked if a request such as Regaâ€™s occurs very often, Scotto said it does not, and he could not recall such a recent case.

Foradora asked Scotto if this was the first time it was requested in a capital case involving the death penalty, and Scotto said the Italian Consulate was interested in Regaâ€™s capital case because it involved the death penalty, to which the Italian government is opposed.

After Scotto was dismissed, Foradora explained his thoughts regarding the defense teamâ€™s contention that Rega is an Italian National and wouldâ€™ve been entitled to extra assistance, and that heâ€™s fact-finding on the Italian National question.

This question goes toward the whole record in Regaâ€™s appeal of the death penalty, not just this question, Foradora said.

â€śI donâ€™t know when Rome will ever get around to deciding whether Mr. Rega is an Italian National or not,â€ť he said, adding that his position is to proceed with the testimony and then decide if there was prejudice involved.

Foradora noted it wasnâ€™t likely that the Italian government would be able to decide any time soon regarding Regaâ€™s Italian citizenship.
Osborne said that he thought that he has met his burden of proof regarding the Italian National question. Burkett disagreed, saying it was not met through witnesses or testimony.

Foradora said as of Thursday, the record is closed on this motion and the appeal, and heâ€™ll make his decision based on the available evidence and testimony.

Further testimony or additional briefs would have to be e-mailed to the judge by today, as heâ€™s going to begin considering all the facts in Regaâ€™s appeal.

â€śI donâ€™t think Regaâ€™s Italian citizenship is an issue in this question, based on bloodline and three generations of Italian citizenship in Regaâ€™s family,â€ť he said. â€śI declare that he is an Italian National, unless Rome would inform us otherwise.â€ť

Osborne made a motion to enter Scottoâ€™s testimony and affidavit into the record as evidence, to which Burkett again objected, again calling it a hearsay document.

Foradora said he will consider the motion as he considers whether Rega would have received advantages as an Italian National if the Italian government had been contacted by his attorneys in his state appeal.

Foradora did not say how long it would take for him to look through all the evidence that has been presented in Regaâ€™s federal appeal, or when he would give his opinion as to whether the order for Rega to die by lethal injection should be vacated due to ineffective counsel.